Hatch Urges Support for Rollback of Narrowly Written DOL Drug Screening Rule

WASHINGTON – In a speech on the Senate floor today, Finance Committee Chairman Orrin Hatch (R-Utah) outlined H.J. Res 42, a resolution to rollback an Obama-era Department of Labor (DOL) regulation regarding the drug testing of Unemployment Insurance (UI) applicants and urged his colleagues to support the resolution:

“The UI program requires beneficiaries to be able and available to work and to be actively seeking work. This is a condition of eligibility for UI benefits,” Hatch said. “The final regulation defined the relevant occupations so narrowly that it basically makes it impossible for states to implement any meaningful drug-testing policy. I urge all Senators to vote in favor of H.J. Res 42.

Hatch went on to note the need for states to have flexibility on the issue and reiterated that the regulation did not fully follow the law’s intent to give the states — not Washington — more power to run their UI programs.

“Congress intended to give states the power to withhold benefits in these cases because, by definition, individuals in these situations are not eligible for UI benefits,” Hatch continued. “This is about: state flexibility. Do we want states to have the freedom to run their own programs as they see fit, or do we believe that bureaucrats in Washington have all the answers?”

The complete speech as prepared for delivery is below:

Mr. President, later today, the Senate will vote on H.J. Res 42, a resolution of disapproval under the Congressional Review Act relating to a Department of Labor regulation on the drug testing of Unemployment Insurance applicants.

I rise today to speak in support of that resolution and to urge my colleagues to vote in favor of its passage.

Let’s put this resolution – and the regulation it would repeal – in proper context.

In 2012, Congress passed and President Obama signed the Middle Class Tax Relief and Job Creation Act. Among many other things, that law included a number of carefully negotiated provisions relating to the Unemployment Insurance program, including a number of reforms to address program efficiency and integrity issues. One of those provisions overturned a DOL ban on drug screening for UI applicants.

Specifically, the law allowed states to test UI applicants who either lost their job due to drug use or were seeking employment in an occupation that generally required drug tests as a condition of employment. It didn’t REQUIRE states to begin drug testing, it only gave them the option.

In addition, the law required DOL to issue regulations to define those occupations that regularly conduct drug tests. States would not be allowed to implement any drug testing policies pursuant to the law until the regulations were finalized.

DOL issued its proposed regulations in 2014. And, at that time, Members of Congress and stakeholders at the state level argued that the proposal fell far short of Congress’s intent. The final rule was issued in August of last year, about four and a half years after the provision was signed into law. And, as before, the final regulation defined the relevant occupations so narrowly that it basically makes it impossible for states to implement any meaningful drug-testing policy.

So, here we are, debating a CRA resolution that would wipe this regulation off the books and give DOL and opportunity put forward something new that better reflects Congress’s intent.

Let’s talk about why this drug testing provision is important.

The UI program requires beneficiaries to be able and available to work and to be actively seeking work. This is a condition of eligibility for UI benefits.

This is what it boils down to: If a worker loses their job due to drug use, they can’t affirmatively establish that they are fully ABLE to work. Likewise, if an unemployed individual is unable to accept a new job because they cannot pass a required drug test, they are not AVAILABLE for work.

Congress intended to give states the power to withhold benefits in these cases because, by definition, individuals in these situations are not eligible for UI benefits.

Keep in mind, according to recent surveys, more than half of all U.S. employers require prospective employees to take a drug test. It isn’t some fringe or mean-spirited notion that there is a connection between the use of illegal drugs and the ability to obtain and maintain employment.

Furthermore, 20 states already limit UI benefits for applicants who refuse to take or who fail a drug test required by an employer or who have previous employment issues relating to drugs. The next logical step, really, is to allow states to conduct the tests themselves in order to maintain program integrity and improve the solvency of their UI trust funds.

Once again, that was what Congress intended with the passage of the 2012 statute. Unfortunately, the Obama Administration took it upon themselves to undo congressional intent.

We’ve heard from a number of governors on this issue – including the Governor of Utah – who support this CRA resolution and who want to see new and better regulations. A number of organizations, including the National Association of State Workforce Agencies, have chimed in as well, expressing their strong support for state flexibility in governing their UI programs.

Ultimately, that’s what this is about: state flexibility.

Do we want states to have the freedom to run their own programs as they see fit, or do we believe that bureaucrats in Washington have all the answers?

It’s probably pretty clear, Mr. President, where I come down on this issue.

The law we drafted and passed in 2012 – the one that passed with bipartisan support – struck a careful balance on this issues. It was the right balance and the right approach. Hopefully a majority of our colleagues will share that view and vote today to restore that balance.